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Friday, April 17, 2015

The House of Graft

“The oppressed are allowed once every few years to decide
which particular representatives of the oppressing class are to represent and
repress them,” said Karl Marx. The idea that members of parliament are part of
the “oppressing class” and represent themselves not their constituents appears
to find much support in the conduct of Kenya’s legislators at all levels. Their
greed and prioritization of self-enrichment above all else and to the detriment
of those they are meant to serve is legendary. Yet Parliament has also served
as a forum for exposing and, if not exactly combating corruption, at least
curtailing some of its more egregious manifestations.

A 2006 Case Study on
the Role of Parliament in the Fight against Corruption: The Case of the Kenyan
Parliament by Dr Fred Matiangi, the current Cabinet Secretary for Information,
Communication and Technology, traces the roots of corruption in Kenya to the
colonial era. “The colonial government rarely understood the traditional
African cultural practice of leaders’ entitlement to gifts and favors from
their subjects, the measures it took in Kenya … smacked of abuse of power,” he writes.
Yet it wasn’t until the sunset of British rule that the Legislative Council,
the fore-runner to today’s Parliament, addressed corruption as an issue. In
1956, the Prevention of Corruption Act, was, according Dr Matiangi,
“corruption became an issue in legislative affairs (albeit, in a superficial
way).”

One would probably be excused for asking why it took half a
century for the Council to discover corruption. A possible explanation could be
found in the fact that for most of its history, the Council simply served as a
rubber stamp for the colonial government. In this, it presaged the subservience
of Parliament to the Executive that was to characterize much of independent
Kenya’s history and to create room for the theft of national resources.

The period following independence saw two trends that were
to exacerbate and entrench corruption in government and in the National
Assembly. The recommendations of the 1971 Commission of Inquiry into the Public
Service Structure and Remuneration (also referred to as the “Ndegwa Commission”
after its chairman, former Head of the Civil Service and later Governor of the
Central Bank of Kenya, Duncan Ndegwa) allowed public officials, including MPs,
to participate in private business which created a host of conflicts of
interest by blurring of the lines between private and public spheres. Secondly,
Parliament was progressively stripped of its powers of oversight over
government and effectively cowed into silence.

As Dr Matiangi notes: “An incestuous relationship would thus
emerge between public service and private interests that would undermine any
interest in integrity issues. Studies have shown, for instance, that there is a
correlation between wealth and politics in Kenya. Those who play active and
influential roles in politics are the well-to-do, or they become well-to-do by
virtue of office.”

With their watchdog role compromised, the Parliamentary
committee system ground to a halt and public service was transformed primarily
into an avenue for personal enrichment and for the looting of public resources.
Politics paid lip service to the poor but in reality excluded them and
privileged the interests of the wealthy while increasing polarisation and
conflict, and driving the honest and meritorious out of public life. MPs who
dared to question this corruption of our politics, like George Anyona, Bildad
Kaggia and JM Kariuki, were ostracised, detained and even murdered.

Following the return of multi-party politics in 1992,
Parliament begun to reassert itself but in a Jekyll and Hide fashion. On the
one hand, the National Assembly became an important forum for the exposure of
mega-corruption scandals. The two largest scams, Goldenberg and Anglo Leasing,
were both brought to public attention by the tabling of documents in the House.
In 1993, Paul Muite and Anyang Nyongo blew the lid off the former after they
received documents from Central Bank whistleblower, David Munyakei. Anglo
Leasing was exposed when opposition MP, Maoka Maore, tabled documents showing
that the Offices of the President, the Vice President, the Ministry of Home
Affairs, and the Treasury were in the process of illegally procuring
passport-issuing equipment, in which the country stood to lose about KSh 70
billion.

Further, in the wake of the Goldenberg revelations,
Parliament established an Anti-Corruption Select Committee (or the “Kombo
Committee,” as it is commonly referred to, after its Chairman, Musikari Kombo)
which was charged with identifying the causes, extent, and impact of corruption
in Kenya as well as the key perpetrators and beneficiaries thereof. It was also
to recommend sanctions against such individuals and recover the lost public
property.

The Kombo Committee represented the first attempt to unearth
and document the scale of corruption in the country. Its report showed that
more than half of all tax revenue was misappropriated and its now-forgotten
List of Shame not only implicated many in the governing elite, but set the
trend for corruption-related Parliamentary “naming and shaming.” The current
list of the corrupt compiled by the Ethics and Anti-Corruption Commission,
whose existence was revealed during President Uhuru Kenyatta’s State of the
Nation address to Parliament, follows in the tradition set by the Kombo
Committee as did the Anglo Leasing List of Shame unveiled a decade ago by then
Justice Minister, Martha Karua.

However, another thing these lists have in common is that
they rarely lead to serious prosecutions, let alone convictions. So even as Parliament
continued to assert itself, its investigations of corruption generate
sensational headlines and embarrassment for government officials, they do not,
as a rule, result in punishment. In fact, sometimes Parliament has itself
purported to clear suspects such as former Finance Ministers, George Saitoti in
Goldenberg and David Mwiraria in Anglo Leasing.

Though much of the initial focus was on corruption in the
executive branch which at the time admittedly included many MPs, the conduct of
the entire legislature has also been firmly in the spotlight. One of the ways
legislature was kept under control was via a deliberate policy of keeping MPs’
pay and benefits low. The President could offer opportunities to supplement
this income via ministerial appointments and, by 1989, half the members elected
to Parliament occupied ministerial positions, eroding the distinction between
the holders of elective office and the administration.

As the Nyayo dictatorship begun to be rolled back, one of
the first objectives of the MPs was to take control of their calendar as well
as their remuneration. Changes which gave Parliament control of its calendar
and budget were pioneered by Peter Oloo Aringo, a former government minister,
at the end of the 90s. Ever since, raising salaries has been a great strategy
to unite MPs and trump executive opposition. It is also a deeply unpopular
strategy with the public who are wont to see MPs as greedy and unprincipled,
insensitive to the plight of those whose taxes pay for their extravagance –a
situation that is not helped by MPs’ reluctance to themselves pay tax.

Repeated salary hikes have multiplied MPs’ minimum pay by a
factor of 10 to just over US$ 10,000. This in a country with a poverty rate of
up to 42 percent outraged many in the Kenyan public who saw it as a form of
corruption – the abuse of public office for personal gain. By 2013, Kenyan legislators
were considered to be by far the best paid in the world relative to per capita
GDP.

One reason for MPs
constant obsession with their pay is that despite the introduction of devolved
funds and county governments, MPs are still expected to contribute to their
constituents’ expenses such as school fees and burial expenses. Thus their pay
serves also as a resource for
bribing voters.

In addition, as Parliament became more assertive, there was
greater interest from businesses looking to influence policy or legislation.
“No one lobbies a weak legislature, but as legislators’ authority over policies
increases, so will attempts to influence them,” wrote Dr Matiangi. This led to
the much-publicized “cash for questions” allegations, where MPs were alleged to
be induced by cash rewards to ask particular questions in Parliament.

For all the money that Kenya has thrown at the problem of
legislative independence, that freedom has not necessarily translated into a
more responsible and effective Parliament. If anything, it has proven that one
cannot buy integrity.

Perceptions of the MPs personal integrity have worsened. A
September 2005 nationwide survey revealed that more than 8 in 10 believed some,
most or all MPs were corrupt. Legislators were second only to the police in
perceptions about public corruption. A 2008 survey showed that less than half
of the population had any meaningful trust in Parliament.

In terms of legislative output, both quantitatively and
qualitatively, it is questionable whether higher pay has improved MPs’ work
ethic. In 2013, Alphonce Shiundu, outgoing chairman of the Kenya Parliamentary
Journalists Association said that the trials of President Uhuru Kenyatta and
Deputy President William Ruto at the International Criminal Court, as well as a
push to further enhance their pay –in the process ignoring public outrage and
swatting aside attempts by the Salaries and Remunerations Commission to revise
their terms- dominated the agenda of Parliament. “Their goal was to protect the
interests that put them there,” he says. “If they were actually working for the
people, their attention would be on different things like the Capital Markets
Authority which has not had a chief executive for 18 months.”

The new constitution has gone some way to reducing the
opportunities for Parliamentary graft. Dr Matiangi identified three ways in
which MPs were vulnerable to corruption. First, as noted above, MPs who became
ministers gain access to resources far beyond those of backbenchers, and the
enticement to use them for personal and party purposes can be very great.
Second, MPs’ control of their own pay as well as the Constituency Development
Fund provided greater opportunities for corruption. And finally, Parliament’s core
legislative and watchdog functions and its greater role in the national budget-making
process, while healthy, also increase the likelihood that individuals and
organizations will attempt to influence public policy by providing MPs with
private benefits.

The first two have effectively been eliminated. MPs cannot
join the Executive unless they first resign (as did Joseph Nkaissery), their
pay is now determined by the Salaries and Remuneration Commission and a court
has recently ruled CDF unconstitutional. However, as the scandals currently
bedevilling several Parliamentary committees demonstrate, there are still
opportunities for bent MPs to make a quick buck.

Dr Matiangi proposed “sunshine as the best antiseptic” and
suggested opening up, not just plenary sessions, but committee meetings to the
press and public. This would indeed be a great start. Laws on public disclosure
of contributions and gifts would also help as would better resourcing of
Parliamentary reporters to enable them sniff out and chase down graft. In
keeping with the “sunshine as antiseptic” theme, Kenyans should also insist on
amending the law to make declarations of wealth by public officials available
for public inspection.

When it comes to punishing corruption, it is important that
MPs are not allowed to hide behind their in-house processes. The scandal
engulfing the Parliamentary Accounts Committee, for example, seems to be
primarily dealt with by the Powers and Privileges Committee, a case of
Parliament investigating itself. Neither the EACC nor the Office of Public
Prosecutions nor the Police appear to have taken any interest. As a society, we
must insist that MPs are held to the same standard as all other public
officers.

More importantly though, it is important that we seek to
reset the basis and objectives of our politics. It must become about finding
solutions to our common problems rather than personal enrichment at the cost of
everyone else. We should not only eliminate the opportunities for graft but
also place integrity and the Kenyan people at the heart of public service. This
will require that we reflect not just on our failure to reform the colonial
history of corruption, but also on the policies and actions of the
post-colonial governments that have entrenched the vice in our body politic.

1 comment:

An excellent post and there are many parallels with Jamaica. I have shared with our local anti-corruption lobby group, of which I am a member. We still have the Constituency Development Fund and it's always a concern!